IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE K. BABU THURSDAY, THE 15^TH DAY OF FEBRUARY 2024 / 26TH MAGHA, 1945 CRL.A NO. 1582 OF 2007 AGAINST THE JUDGMENT DATED 10.08.2007 IN SC NO.988 OF 2005 OF ADDITIONAL SESSIONS COURT, FAST TRACK NO.II-ADHOC, THRISSUR APPELLANT/ACCUSED:

VIJAYAN, ERUVEETTIL HOUSE, KUTTICHIRA VILLAGE, CHAIPANKUZHI DESOM, THRISSUR DISTRICT.

BY ADV SRI.A.C.DEVY RESPONDENT/STATE:

STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31.

BY ADV SRI.G.SUDHEER, PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 15.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

K.BABU, J.

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Criminal Appeal No.1582 of 2007 ---------------------------------------

Dated this the 15^th day of February, 2024 JUDGMENT Aggrieved by the judgment dated 10.08.2007, passed by the Additional Sessions Court, Fast Track No.II-Adhoc, Thrissur in S.C.No.988/2005, the appellant/accused has preferred this appeal. The appellant was convicted under Section 8(2) of the Abkari Act and sentenced to undergo simple imprisonment for a term of three years and pay a fine of Rs.1 Lakh. During the pendency of this appeal, the appellant died. None of the near relatives of the appellant turned up. As the sentence challenged is a composite sentence of fine and imprisonment, the appeal shall not abate as against the appellant. In view of the ratio in Ramesan (Dead) through Lr. Girija A. v. State of Kerala [(2020) 3 SCC 45], this Court is bound to decide the appeal on merits.

2. The prosecution case is that on 07.01.2004 at about 5.15 p.m, the accused was found in possession of five litres of arrack in a 10 litre can at Chaypankuzhi in Kuttichira Village.

3. After completing the investigation, final report was submitted against the accused for the offence punishable under Section 8(2) of the Abkari Act before the jurisdictional Magistrate. The case was committed to the Sessions Court, from where it was made over to the Trial Court. On the appearance of the accused, charge was framed against him for the offence punishable under Section 8(2) of the Abkari Act. The accused pleaded not guilty to the charge, and therefore, he came to be tried by the Trial Court for the aforesaid offence.

4. The prosecution examined PWs 1 to 5 and proved Exts.P1 to P13 and MO1.

5. After the closure of the prosecution evidence, statement of the accused under Section 313 Cr.P.C. was recorded. He pleaded innocence. The Trial Court heard the matter under Section 232 Cr.P.C. and found evidence against the accused and hence he was called upon to enter on his defence and adduce evidence, if any, he may have in support thereof. After hearing the arguments addressed on both sides, the Trial Court convicted the appellant/accused for the aforesaid offence.

6. Heard Sri. A.C.Devy, the learned counsel appearing for the appellant/accused and Sri.G.Sudheer, the learned Public Prosecutor appearing for the respondent.

7. The learned counsel for the appellant challenged the judgment of conviction and sentence on the ground that the prosecution failed to establish that the contraband substance allegedly seized from the place of occurrence eventually reached the Chemical Examiner's Laboratory:

8. The learned counsel for the appellant relied on the following circumstances to substantiate his contentions:

(i) Exhibit P1 seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample.

(ii) The various officials who handled the sample during its transit from the Court to the laboratory were not examined.

9. The alleged seizure was effected on 07.01.2004. The detecting officer prepared Ext.P1 seizure mahazar. Exhibit P1 seizure mahazar does not contain the nature and description of the seal stated to have been used. The specimen of the seal has not been produced along with the sample.

10. In Bhaskaran K. v. State of Kerala an